CONSTITUTIONAL LAW BAR REVIEW OUTLINE

I. The Federal Judicial Power

A. Cases and Controversies

1. Art. III requires that federal courts may only try cases and controversies.
a. Supreme Court may not issue advisory opinions.

2. Standing

a. Injury
1) π must allege and prove that he or she has been injured or imminently will be
injured.
2) Includes violations of C/L, statutory, or constitutional rights.
3) May include aesthetic or environmental injuries.
4) Economic loss is the best injury.
5) π ’s may only assert injuries that they personally have suffered.
6) π ’s seeking injunctive or declaratory relief must show a likelihood of future harm.

b. Causation and Redressability.

1) ∆ caused the injury.
2) Favorable court decision will remedy the injury.

c. No 3rd Party Standing.

1) π may not assert claims of 3rd parties.
2) Three Exceptions
a) Close relationship between π and injured 3rd party.
i) Ex: Bartenders who sued on behalf of their customers.
b) Injured 3rd party unlikely to able to assert their own rights.
i) Ex: Criminal ∆ ’s may raise the rights of prospective jurors to be free from
discrimination.
c) Organization has standing if its members have standing.

d. No Generalized Grievances
1) π may not sue solely as a “taxpayer” or a “citizen” interested in having the gov’t
follow the law.
2) Establishment Clause Exception
a) Taxpayers may challenge gov’t spending as violating the Establishment Clause
against religion.
i) Ex: If the gov’t gives $ directly to religious schools.
b) Taxpayer may not challenge a gov’t grant of land as violating the Establishment
Clause (only $).

3. Ripeness
a. Generally court may not review a statute until it is has been violated.
b. Factors
1) Hardship that will be suffered w/o pre-enforcement review.
2) Fitness of the issues and record for judicial review.
c. Ex: Drug companies were allowed to challenge FDA reg that required them to add
expensive labels to drugs.

4. Mootness
a. If π ’s injury ends after the lawsuit is filed, the suit is dismissed as moot.
b. Exceptions

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 1) Wrong capable of repetition but evading review.
2) Voluntary cessation.
3) Class action suits.

5. Political Question Doctrine

a. Courts will not hear political question cases.
b. Examples automatically dismissed as political questions:
1) Republican Form of Government Clause
a) Ex: voters adopt a law by initiative, not representation.
2) Challenges to President’s foreign policy.
a) Signing of treaties.
b) Waging war.
3) Challenges to impeachment and removal process.

B. Supreme Court Review

1. Writ of Certiorari
a. Virtually all cases come to the U.S. Supreme Court by writ of certiorari.
1) All cases from State courts (discretionary review).
2) All cases from U.S. Court of Appeals (discretionary review).
3) Decisions of three-judge district courts (non-discretionary review).
4) Suits between State gov’ts (original and exclusive jurisdiction).

2. Final Judgment Rule

a. Supreme Court may only hear cases after a final judgment.
b. There is no interlocutory appeal.

3. Independent and Adequate Ground

a. To review a State court decision, there can not be an independent and adequate state
law ground of decision.
b. If State decision rests on state and federal law, and reversal of the federal judgment will
not change the outcome of the case, then the Supreme Court can not hear it.
1) Ex: If π wins both a state law battery claim and a federal discrimination claim and
gets the same damages, it is non-appeallable.

C. Sovereign Immunity

1. Lower federal courts and state courts may not hear suits against state governments.
a. 11th Amend. bars naming a state as a ∆ in federal court.
b. Sovereign immunity bars suing a state in state court (without the state’s consent).

2. Exceptions
a. Waived by state gov’t.
b. States may be sued pursuant to federal laws adopted under 14th Amend.
1) Ex: Civil Rights Act adopted under EPC.
2) Feds may not authorize suits under other portions of the Constitution.
c. Federal gov’t may sue state gov’ts.
d. Suits against state officers.
1) Ex: If a law is unconstitutional.

II. The Federal Legislative Power

A. Congress’ Authority to Act

1. There must be an express of implied power.

a. Congress has no federal police power.

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 b. Exceptions
1) Washington, D.C.
2) Indians.
3) Military.
4) Federal Land.

2. Necessary and Proper Clause

a. Congress may use any means not prohibited.
b. Ex: Bake sale to fund the military.

3. Taxing and Spending Power

a. Congress may tax and spend for the “general welfare.”

4. Commerce Clause
a. Channels of interstate commerce.
b. Instrumentalities or persons or things in interstate commerce.
c. Activities that have a substantial effect on interstate commerce.
1) Economic impact.
2) If area being regulated is non-economic, then substantial effect can not be based on
cumulative impact (i.e, violence against women).
d. Ex: all forms of intercourse that go across state lines, trucks, phones, the Internet.

5. 10th Amend. Limit on Congressional Powers (1 MBE ?)

a. Congress may not compel state action.
b. Congress may induce state action by putting strings on grants that expressly state the
conditions.

6. Section 5 of the 14th Amend.

a. Congress may not create new rights or expand the scope of rights.

B. Delegation of Powers

1. No limit on Congress’ power to delegate legislative power to executive or judiciary.

a. Ex: U.S. sentencing guidelines.
b. It is never a right choice if the answer says “excess of delegation.”

2. Legislative vetos and line-item vetos are always unconstitutional.

a. Must be bicameralism.
b. Must be presentment to President to sign or veto all of the bill in its entirety.

3. Congress may not delegate executive power to itself or its officers (MBE).

III. The Federal Executive Power (7 MBE ?’s)

A. Foreign Policy

1. Treaties
a. Negotiated by the Pres. and effective when ratified by the Senate.

2. Executive Agreements
a. Negotiated by the Pres. and effective when signed by the Pres. and the head of a foreign
country.
b. Do not need to be ratified by the Senate.

3. President has broad powers as Commander-in-Chief to use troops in foreign countries.

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 TREATIES AND EXECUTIVE AGREEMENTS

IS SENATE CONFLICTS WITH CONFLICTS WITH CONFLICTS WITH

APPROVAL STATE LAW FEDERAL CONSTITUTION
REQUIRED? STATUTE

Yes Treaty Controls Whichever was Constitution

TREATIES adopted last in Controls
time controls

No Executive Federal Constitution

EXECUTIVE Agreement Statute Controls
AGREEMENTS Controls Controls

B. Domestic Affairs

1. Appointment Power (MBE ?)

a. Pres. appoints ambassadors, federal judges, and Officers of the U.S.
b. Senate confirms.
c. Congress may vest appointment of inferior officers in Pres., the heads of Dep’ts, or lower
federal courts.
1) Ex: Congress may vest appointment of independent counsel w/ federal court.
d. Congress may not give itself or its officers the appointment power.
1) Ex: Congress creates a new agency and gives some appointment power to the
Speaker of the House or the President Pro Tem of the Senate (its unconstitutional).

2. Removal Power
a. Unless limited by statute, President may fire any executive branch officer.
b. Congress may limit removal to good cause when independence from the Pres. is
desirable.

3. Impeachment and Removal

a. Pres., Vice-Pres., federal judges, and Officers of the U.S. can be impeached and
removed from office for treason, high crimes and misdemeanors.
b. Impeachment does not remove a person from office.
c. Impeachment by the House requires a majority vote.
d. Conviction by the Senate requires a 2/3 vote.

4. Immunity
a. Pres. has absolute immunity to civil suits for $ damages for any actions while in office.
b. Immunity does not apply to actions before taking office.

5. Executive Privilege
a. Executive privilege covers presidential papers and conversations.
b. Privilege yields to other important governmental interests.

6. Pardon Power (MBE)

a. President may pardon those accused or convicted of federal crimes.
b. Crimes must be federal not state crimes.
c. President may not pardon civil liability, including civil contempt.
d. President can not pardon anyone for the crimes for which they impeached for.

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IV. Federalism

A. Preemption (5 MBE ?’s)

1. Supremacy Clause states Constitution and federal laws are supreme law of the land.

2. Express Preemption
a. Federal law explicitly states that the federal law is exclusive.

3. Implied Preemption
a. If federal law and state law are mutually exclusive, state law is preempted.
1) If it is impossible to comply w/ both the State and Federal laws.
2) State may set stricter environmental standards than the Federal law, unless
prohibited.
b. If state law impedes the achievement of a federal objective, federal law preempts state
law.
c. If Congress evidences a clear intent (based on legislative history) to preempt state law.

4. State may not tax or regulate federal government.

a. It is unconstitutional to pay a State out of the Federal Treasury.
b. State may not regulate the Federal gov’t if it burdens Federal activity (i.e., pollution
controls).

B. Dormant Commerce Clause and the Privileges & Immunities Clause of Article IV

1. Definitions (applies when State and Local Gov’t’s make laws)

a. Dormant Commerce Clause
1) State and local laws may not place an undue burden on interstate commerce.
2) Also called the negative implications of the Commerce Clause.
b. Privileges & Immunities Clause of Article IV
1) No State may deny citizens of other states privileges and immunities it affords its own
citizens.
c. Privileges & Immunities Clause of 14th Amend.
1) Only protects the right to travel.
2) Otherwise, it is always a wrong answer choice.
3) Ex: CA discriminates against new in-staters re: the receipt of welfare benefits.

2. Discrimination

a. If the law does not discriminate against out-of-staters:

1) Privileges & Immunities Clause of Art. IV ≠ apply.
2) Dormant Commerce Clause is violated if law burdens interstate commerce and
burdens exceed its benefits.

b. If the law discriminates against out-of-staters:

1) Privileges & Immunities Clause violated if it interferes w/ ability to earn livelihood.
a) Discrimination is regard to civil liberties or economic activities.
i) Ex: Commercial shrimp fishing but not recreational elk hunting.
b) Corporations and aliens can not claim it.
2) Dormant Commerce Clause violated unless it is necessary to achieve important
government interest.
a) Ex: MA says no out-of-state bait fish b/c of fear of contamination to environment.
b) Exceptions
i) Congressional Approval.
ii) Market-Participant Exception.

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 (1) Ex 1: PSU (state-owned school) may charge less in tuition to residents.

DORMANT COMMERCE CLAUSE/PRIVILEGES & IMMUNITIES CLAUSE OF ART. IV

DOES THE STATE OR LOCAL GOVERNMENT’S ACTION

DISCRIMINATE AGAINST OUT-OF-STATERS?

YES NO

Violates the Dormant
Commerce Clause if it
places a burden on
interstate commerce
unless it is necessary to
achieve an important
government purpose.
Two Exceptions:
(1) Congressional
approval of
discrimination.
(2) Market participant
exception.
Violates the Privileges &
Immunities Clause of Art.
IV if it discriminates
against individuals w/
regard to important
economic activities or
civil liberties unless it is
necessary to achieve an
important gov’t purpose.
If the gov’t is burdening Privileges & Immunities
interstate commerce, Clause of Art. IV is
balance the benefit to inapplicable.
the state vs. the burden
on interstate commerce
(if the benefit exceeds
the burden, the law is
upheld; if the burden
exceeds the benefit, the
law is struck down).

COMPARISON OF THE DORMANT COMMERCE CLAUSE AND THE

PRIVILEGES & IMMUNITIES CLAUSE OF ART. IV

DORMANT COMMERCE CLAUSE PRIVILEGES & IMMUNITIES CLAUSE OF ART. IV

1) Does not require discrimination vs. out-of- 1) Requires discrimination vs. out-of-staters in
staters in order to apply. order to apply.

2) Requires a burden on interstate commerce. 2) Requires discrimination w/ regard to civil

3) Corporations and aliens can sue under it.
4) Exceptions: Congressional approval and
Market Participant Exception.
liberties or important economic activities.
3) Corporations and aliens can NOT sue under it.
4) No Exceptions.

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V. The Structure of the Constitution’s Protections of Individual Liberties

A. Is there government action?

1. Constitution only applies to gov’t action, not private action.

2. Statutes may apply the constitutional norms to private conduct.

a. 13th Amend. applies directly to private conduct (no slavery).
b. Private racial discrimination may violate statutes adopted under the 13th Amend.
c. Commerce power can apply constitutional norms to private conduct.
d. Congress can not use section 5 of the 14th Amend. (EPC) to regulate private conduct.

3. Private Conduct Exceptions

a. Public function exception (company owned-towns, elections).
b. Entanglement exception
1) Courts may not enforce racially restricted covenants.
2) Gov’t leases premises to restaurant that racially discriminates.
3) State provides books to schools that racially discriminate.
4) No state action when gov’t subsided school fired teacher in violation of 1st Amend.
5) No state action when NCAA (all over the country) ordered coach suspended.
6) State action when private entity regulates school sports entirely w/in one state.
7) No state action when private club w/ state liquor license discriminates.

B. Application of the Bill of Rights

1. Bill of Rights directly only applies to federal government.

2. Bill of rights incorporated through DPC of the 14th Amend. except:

a. Right to bear arms (2nd Amend).
b. Right to not have solider quartered in your house (3rd Amend).
c. Right to grand jury in criminal cases (5th Amend).
d. Right to jury trial in civil cases (7th Amend).
e. Right against excessive fines (8th Amend); excessive bail not okay.

C. Levels of Scrutiny:

THE LEVELS OF SCRUTINY CHART

MEANS? ENDS? LEAST BURDEN OF

RESTRICTIVE PROOF?
ALTERNATIVE?

Rationally Legitimate No Challenger

RATIONAL Related Conceivable
BASIS TEST Purpose
Important Uncertain, but Government
INTERMEDIATE Actual Probably Not
SCRUTINY Purpose

No Compelling Yes Government

Actual
STRICT SCRUTINY
Purpose

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VI. Due Process

A. Procedural Due Process

1. Has there been a deprivation of life, liberty, or property?

a. Liberty = Loss of significant freedom provided by Constitution or statute.
1) Does not include prisoners w/in prison.
b. Property = Entitlement that is reasonably expected and has not been fulfilled.
1) Includes the continued receipt of a benefit.

2. What procedure are required?

a. Balancing Test (Matthews v. Eldridge)
1) Importance of the interest.
2) Ability of additional procedures to increase accuracy of the fact-finding.
3) Government interest (cost) in efficiency.
b. Examples
1) Welfare benefits get notice and hearing.
2) Social security benefits get post termination hearing.
3) School students get notice of charges and opportunity to explain.
4) Loss of custody of child gets notice and hearing.
5) Punitive damage award gets instructions to jury and judiciary review.
6) Pre-judgment attachment and gov’t seizure get notice and hearing (includes innocent
owners).

B. Substantive Due Process

1. Is there an adequate reason for the gov’t taking a person’s life, liberty, or property?

2. Economic Liberties regulations get Rational Basis Review

a. Minimum wage laws.
b. Consumer protection laws.
c. Professional regulations.

3. Takings Clause (5th Amend.)

a. Gov’t may take private property for public use if it provides just compensation.
b. Possessory Taking
1) Actual gov’t confiscation or physical occupation.
c. Regulatory Taking
1) Regulation leaves no reasonable economically viable use of the property = taking.
2) Gov’t condition on development of property with a benefit that is roughly proportional
to the burden imposed ≠ taking.
3) Reasonable temporary denial of use of property is ≠ taking.
4) Regulation that lowers the value of a property ≠ taking.
5) Property owner may bring Takings Clause challenge to existing regulations.
d. Just Compensation
1) Fair market value to the owner.
2) Not based on gain to the taker.

4. Contracts Clause (Art. I)

a. No State or local gov’t may interfere w/ existing Ks.
1) Does not apply to the feds.
2) Does not apply to future Ks.
3) Only applies to civil cases.
b. Interference w/ private Ks gets Intermediate Scrutiny.
1) Does reg substantially impair party’s rights under existing K?

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 2) Is law reasonably tailored to promote important public interest?
c. Interference w/ government Ks gets Strict Scrutiny.
d. Ex Post Facto Clause
1) Retroactive criminal liability is unconstitutional under the Ex Post Facto Clause.
2) Retroactive civil liability gets Rational Basis Review.
3) Bill of Attainder directs punishment of specific person w/o a trial (unconstitutional).
4) Ex Post Facto Clause is a common wrong choice on a Contracts Clause MBE ?.

5. Right to Privacy (Fundamental Right under Substantive Due Process).

FUNDAMENTAL RIGHTS KEY EXAMPLES

Rights Triggering Rights Triggering Not a Fundamental Right

Strict Scrutiny Undue Burden Test (Only Rational Basis Review)

• Right to marry • Right to abortion • Right to practice a trade or

• Right to procreate profession
• Right to custody of children • Right to physician-assisted suicide
• Right to keep family together • Right to homosexual activity
• Right to control raising of children • Right to education
• Right to purchase and use contraceptives
• Right to travel (EPC)
• Right to vote (EPC)
• Freedom of speech (1st Amend)
• Freedom of association (1st Amend)
• Free exercise of religion (if law is not neutral
law of general applicability) (1st Amend)

VII. Equal Protection

A. Approach

1. Define the classification

2. define the level of scrutiny

3. determine whether the law meets the level of scrutiny

B. Constitutional Provisions concerning Equal Protection

1. Fourteenth Amendment applies to state and local governments only

2. Fifth Amendment applies to federal government only

C. Classifications based on Race/National Origin

1. Strict Scrutiny Applies

2. Classification
a. Classification exists on the face of the law or
b. If facially neutral, demonstrate that the law has
1) Discriminatory impact and

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 2) Discriminatory intent
3) Example: Discriminatory use of peremptory challenges based on race denies equal
protection

3. Where racial classifications benefit minorities:

a. Strict scrutiny applies
b. Quotas only upheld if there is clear proof of past discrimination
c. Education institutions may use race as one factor in admissions to help minorities
d. Seniority systems may not be disrupted for affirmative action

D. Gender Classifications

1. Intermediate Scrutiny Applies: Classification must be substantially related to an important

government interest

2. Government must show an exceedingly persuasive justification for the discrimination

3. Classification
a. Classification exists on the face of the law or
b. If facially neutral, demonstrate that the law has
1) Discriminatory impact and
2) Discriminatory intent

4. Where gender classifications benefit women

a. Classifications that benefit women based on role stereotypes will not be allowed
b. Gender classification designed to remedy past discrimination will be allowed

5. Examples of Invalid Gender Classifications

a. Gender-based death benefits
b. Gender-based peremptory strikes
c. Alimony for women only
d. State supported all-male or all-female schools
e. Discriminatory minimum drinking age

6. Examples of Valid Gender Classifications

a. All male draft
b. Discriminatory statutory rape laws

E. Alienage Classifications

1. General Rule: Strict Scrutiny Applies

2. Rational basis applies if classification is based on self-government and the democratic

process
a. Voting
b. Being a police officer
c. Being a probation officer
d. Serving as a juror
e. Being a teacher

3. Rational basis applies when Congress discriminates against aliens (they have the sole power
to regulate)

4. Intermediate Scrutiny applies for undocumented alien children

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F. Discrimination against Non-Marital Children

1. Intermediate Scrutiny Applies

2. Laws that deny a benefit to all non-marital children, but grant to all marital children are
unconstitutional

G. Rational Basis Review for all other types of Discrimination

1. Age discrimination (e.g., mandatory retirement laws)

2. Disability discrimination
3. Wealth discrimination
4. Economic regulation
5. Sexual orientation discrimination

H. Fundamental Rights Protected under Equal Protection

1. Right to Travel
a. Laws that prevent people from moving into a state must meet strict scrutiny
b. Durational residency requirements must meet strict scrutiny
c. Rational basis applies to restrictions on foreign travel

2. Right to Vote
a. Laws that deny some citizens the right to vote get strict scrutiny
b. No property ownership conditions allowed
c. One-person-one-vote applies to all state and local elections
d. Voter approval does not justify a deviation from one-person-one-vote requirement
e. At large elections are OK unless discriminatory purpose exists
f. Use of race in drawing election district lines to benefit minorities must meet strict scrutiny
g. Counting uncounted votes without standards in a presidential election violates equal
protection (Bush v. Gore)
h. Maximum residency requirement for voting is 50 days

3. No fundamental right to education

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 EQUAL PROTECTION CHART

1. WHAT IS THE CLASSIFICATION?

a) The classification is on the face of the law or

b) If the law is facially neutral; there is both a discriminatory intent and a discriminatory impact

2. WHAT IS THE LEVEL OF SCRUTINY?

Strict Scrutiny Intermediate Scrutiny Rational Basis

Law must be necessary to achieve a Law must be substantially related to an Law must be rationally related to a
compelling government purpose. important government purpose. legitimate government interest

• Race Government must show exceedingly • Alienage classifications related

• National Origin persuasive justification for the to self-government and
• Alienage –generally discrimination democratic process
• Travel • Congressional regulation of
• Voting • Gender aliens
• Illegitimacy • Age
• Undocumented Alien Children • Handicap
• Wealth
• All other classifications

3. DOES THE LAW MEET THE LEVEL OF SCRUTINY?

VIII. The First Amendment

A. Free Speech Methodology

1. Content Based Restrictions

a. Must meet Strict Scrutiny.
1) Subject matter restrictions.
2) Viewpoint restrictions.

2. Content Neutral Restrictions.

a. Must meet Intermediate Scrutiny.

3. Prior Restraints
a. Court orders suppressing speech before it occurs must meet Strict Scrutiny.
1) Collateral Bar Order: court orders must be complied w/ until they are overturned.
2) Gag Orders are always constitutional.
b. Licensing Schemes
1) Must be an important reason and clear criteria.

4. Vagueness and Overbreadth

a. Vagueness if reasonable person can not tell what speech is prohibited.
b. Overbroad if regulates substantially more than allowed.
c. Fighting Word laws are always overbroad and vague.

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 5. Symbolic Speech
a. Can be regulated if gov’t has important interest unrelated to suppression of ideas and if
impact is no greater than necessary to achieve goal.
b. Examples
1) Flag burning is protected.
2) Draft card burning is not protected.
3) Nude dancing is not protected.
4) Burning a cross or painting a swastika are protected.
5) Penalty enhances for hate crimes are constitutional.
6) Election Restrictions
a) Contribution limits are constitutional.
b) Expenditure limits are unconstitutional.

6. Anonymous speech is protected.

B. Unprotected or Less-Protected Speech

1. Incitement of illegal activity.

2. Obscenity and sexually-orientated speech.

a. The Test
1) Appeals to prurient interest.
2) Patently offensive.
3) No redeeming artistic, literary, political, or scientific value on a national level.
b. Zoning ordinances may regulate the location of adult bookstores and theatres.
c. Child porn (actual children used) is completely bannable.
d. Private possession of obscene materials (except child porn) is not punishable.
e. Business possession of obscene materials may be seized.
f. Profane and indecent speech is generally protected.
1) Exception: Broadcast over free media.
2) Exception: In schools.

3. Commercial Speech
a. False and deceptive ads are not protected.
b. Commercial speech that risks deception can be prohibited.
1) Professionals may be stopped from using a trade name.
2) Attorneys may be stopped from in-person, face-to-face solicitation.
a) Covers ambulance chasers.
b) Does not cover an offer for free services.
c) Does not cover letter solicitation.
3) Accountants may solicit any way they want (including face-to-face).
c. Other commercial speech is subject to Intermediate Scrutiny.
1) Gov’t regulation of commercial speech is narrowly tailored but does not have to be
the least restrictive means necessary.

4. Defamation
a. Because of Free Speech, a π ’s right to recover for defamation may be limited.

DEFAMATION

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 PLAINTIFF LIABILITY STANDARD DAMAGES BURDEN OF PROOF

Public Official or Compensatory

Public Figure
Private Figure in
Matter of Public Concern
Private Figure in
Matter of Private Concern
Actual Malice Plaintiff must prove falsity
Punitive Damages
Negligence and Compensatory (Actual Injury)
Plaintiff must prove falsity
Actual Injury Punitive (Actual Malice)
Compensatory (Actual Injury)
Burden on Defendant to
Negligence Punitive Damages (do not
prove Truth Defense
require Actual Malice)

C. Places Available for Speech

1. Public Forums/Limited Public Forums

a. TPM restriction must leave open ample alternative channels.
b. Need not be the least restrictive means.
c. City officials can not have discretion to set permit fees.

2. Non-Public Forums
a. Subject to rational basis review
b. Examples
1) Military bases.
2) Prison grounds.
3) City bus ad space.
4) Sidewalks on post office property.
5) Airports (may distribute literature only).
6) Debates on gov’t owned TV station.

PLACES AVAILABLE FOR SPEECH

SUBJECT MATTER VIEWPOINT METHOD OF REGULATION INTEREST REQUIRED?

NEUTRAL? NEUTRAL? ALLOWED?

PUBLIC FORUMS & LIMITED Yes Yes Time, Place, or Manner Important
PUBLIC FORUMS
No Yes Reasonable Legitimate
NON-PUBLIC FORUMS
No 1st Amend. Right to use Private Property for Speech Purposes.
PRIVATE PROPERTY

D. Freedom of Association

1. Laws that prohibit/punish group membership get strict scrutiny.

2. Punishment allowed if group member:

a. Actively affiliated w/ group.
b. Knew of its illegal activities.
c. Intended to further those illegal activities.

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 3. Laws that require disclosure of group membership which would chill association get strict
scrutiny.

4. Laws that prohibit a group from discriminating are constitutional unless:

a. The group is an intimate association (poker game or dinner party).
b. Discrimination is part of the group’s expressive activity (KKK, Nazis, Boy Scouts).

E. Freedom of Religion

1. Free Exercise Clause

a. Cannot be used to challenge a neutral law of general applicability unless the law is
motivated by a desire to intentionally interfere w/ religion.
1) Ex: Peyote law.
b. Gov’t may not deny benefits to someone who quits job for religious reasons.

2. Establishment Clause
a. Lemon Test
1) Secular purpose for the law.
2) Effect must be neither to endorse nor inhibit religion.
3) No excessive entanglement w/ religion.
b. Examples
1) Law requiring posting of 10 Commandments in schools is unconstitutional.
2) Nativity scenes must be accompanied by secular counterpart and counterparts from
other religions.
3) Gov’t may not give cash $ directly to religious institutions or schools.
c. Laws discriminating among religious speech or religions are subject to strict scrutiny.
d. Schools
1) Gov’t sponsored religious activity in public schools is unconstitutional.
2) Voluntary school prayer is unconstitutional.
3) Religious groups must have the same access to school facilities as non-religious
groups.
4) Gov’t may give assistance (supplies) but not $ to religious schools as long as it is not
used for religious instruction.
5) Gov’t may provide parents w/ school vouchers; parents can then choose to use them
at religious schools.

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